The court has read and considered the defendant's Notice of Objections to Testimony Concerning DNA Evidence and Memorandum in Support Thereof, and the People's Response to Notice of Objections to Testimony Concerning DNA Evidence and Memorandum in Support Thereof. In his notice, defendant seeks to notify the court of "defendant's position regarding the legal requirements for admissibility of DNA evidence, the foundational showings that are necessary to meet those requirements, and the types of
testimony concerning DNA evidence that are legally improper and inadmissible." (Note 1)

The defense makes numerous requests of the court. Primarily, the defense argues that (1) their waiver of a pretrial in limine Kelly (Note 2) hearing applies only to DNA tests conducted up to the time of waiver; (2) the waiver of Kelly is not a waiver of the third prong of Kelly, i.e., that the correct procedures were used in the present case; 93) the defense is entitled to a 402 hearing to establish certain preliminary facts regarding the admissibility of DNA evidence; and lastly, 95) the defense lists at least fourteen independent and specific arguments concerning the admissibility and/or presentation of DNA evidence. Each of these arguments is addressed below.

1. The defense's argument that their waiver of a pretrial in limine Kelly hearing (Note 3) applies only to DNA tests completed up to the time of the waiver is not persuasive. Subsequent DNA testing, using the same RFLP and PCR methods as previously, has no logical effect on the defendant's waiver of his right to challenge the admissibility of DNA testing results and the defense cites no authority to support their argument.

The issue waived by the defense in foregoing a Kelly hearing was the general acceptance of various forms of DNA testing, i.e., its admissibility. AS proper foundational showing must be made by the proponent of the evidence during trial. nevertheless, the defense's waiver of Kelly is not limited to the tests done up to a point that the waiver was made. (Note 4) The defense's argument on this point is not well taken.

2. The defense argument that a waiver of their Kelly hearing was not a waiver of Kelly's third prong (Note 5) is not persuasive. The third prong of Kelly is still part of Kelly and part of the waiving Kelly, the defense also waived third-prong challenges pertaining to the admissibility or general acceptance of the evidence. However, the prosecution must still lay the proper preliminary foundation for the DNA tests conducted. Therefore, it must be shown foundationally that the tests were properly conducted. (Note 6)

3. Defendant's request for a 402 (Note 7) hearing on the admissibility of DNA evidence is likewise declined. Although a 402 hearing is the proper method to determine the admissibility of DNA evidence, these DNA hearings are in the form of a Kelly inquiry. (Note 8) Kelly is the proper and exclusive standard for admissibility of scientific evidence in California. No authority was cited by the defense, nor did the court find any, that would require a 402 hearing. Further, the court has previously declined the defendant's request to litigate the general acceptance of DNA evidence before the jury trial. (Note 9) Although the defense again "urges that issues arising under the first prong of Kelly be litigated during the course of the trial, " their request is again declined because of the express waiver at the Kelly hearing.

4. Defendant's request for a 403 hearing (Note 10) is declined. Although the defense asserts that most of their objections to DNA "challenge the existence of preliminary facts that are essential to the admissibility of DNA evidence," their objections, most of which are well taken, go more towards the foundation of the DNA evidence and do not require the court to make a determination of a preliminary fact pursuant to Evidence Code section 403.

The one California appellate case in which a 403 hearing was required in the context of DNA evidence was People v. Pizzaro (5th Dist. 1992) 10 Cal. App. 4th 57. In Pizzaro, the prosecution used a database that took ethnicity and race into consideration. Id. at 90. The court held that before such a database can be used to conduct probability calculations there must be sufficient proof under evidence code section 403 that the perpetrator was of the same race as the racial database being used. Id at 94. Therefore the preliminary fact to be determined by the judge was the race of the perpetrator, not any foundational issue relating to the reliability of the evidence itself.

Pizzaro is inapposite to the present case. The defense raises numerous foundational objections which they ask the court to make preliminary determinations of fact regarding. It is the court's position that the court is not required to address these issues in a 403 hearing. Rather, during the presentation of the DNA evidence, the proponent of DNA evidence must establish the proper foundation. At that time the defense can cross examine the experts on the issues presented in this motion. A request for a 403 hearing is the inappropriate method in which to pursue these issues. Therefore, the request for a 403 hearing is denied.

5. The defendant's objection to the "presentation of any testimony concerning a "match," or consistency between samples with respect to genetic characteristics, unless . . . accompanied by . . . valid statistics. . ." is not well taken. This is not to say that evidence of an apparent DNA "match" is admissible without such statistics. Clearly is not. E.g., People v. Barney (1st Dist. 1992) 8 Cal. App. 4th 798, 817, 10 Cal. Rptr. 2d 731, 742. However, it is not required that the parties refer to these statistical probabilities every time the DNA is mentioned. Further, referring to the DNA as "matching" the defendant or being ■consistent■ with the defendant is not tantamount to saying that the samples are identical or totally unique. (Note 11)

6. The remainder of the defense■s arguments presented in their Notice of Objections will not be addressed as they go towards the foundation of the DNA evidence proffered by the prosecution, and the court declines to conduct a 402 or 403 hearing as requested by the defense.

The clerk of the court is directed to immediately serve a copy of this ruling upon the parties by facsimile and upon their appearance in court 11 April 1995.

IT IS SO ORDERED

END NOTES

1 Notice of Objections, at 2.

2 People v. Kelly, (1976) 17 Cal. 3d 34

3 See Notice of Defendant's Withdrawal of his Motion for a Pretrial in Limine Kelly-Frye Hearing, filed January 3, 1995

4 The prosecution states in their Response to Notice of Objections Concerning DNA Evidence and Memorandum in Support Thereof, that "further testing which has been conducted has been with prior notification to the Court and counsel and comports with this Court's earlier rulings regarding additional typing." Id. at 8.

5 The third prong of a Kelly analysis requires that the correct scientific procedures were used in the present case. People v. Kelly, (1976) 163 Cal. App. 3d 294, 296.

6 E.g., ANDREA A MOENSSENS ET AL., SCIENTIFIC EVIDENCE IN CIVIL AND CRIMINAL CASES, at 944 (4th ed. 1995) ("The proper foundation for the [DNA] evidence, such as expert's qualifications, proper application of the testing techniques and accurate recording of test results, still must be presented.") (emphasis added.)

11 However, the court notes that at least one California appellate decision uses the very language to which the defense objects. See People v. Wilds (2nd Dist. 1995) 31 Cal. App. 4th 636, 641, 37 Cal. Rptr. 2d 351, 353 ("Expert Testimony established that the DNA from these three sources was identical.")